Specific Fundamental Rights

The original Constitution had seven fundamental rights, but as a result of the 44th amendment in 1978, right to property was deleted from the list of the fundamental rights, and was accordingly, declared an ordinary right under article 300 A. Article 300 A reads: No person shall be deprived of his property save by authority of law. The specific fundamental rights, as stated in Part III, can be described as under:

Right to Equality

Equality before law:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

(Article 14)

Article 14 grants equality before law or the equal protection of the laws to any ‘person’. Though equality before law or equal protection of the laws have been equated the same by using the word ‘or’ between the two, the two do not mean the same thing: equality before law connotes a negative tone, i.e., the state would not discriminate among persons, a phrase, of the English origin; the equal protection of laws gives a positive tone, i.e., the state would grant equal protection to all the people, a phrase which has an American origin. Both emphasise, indeed, on ‘equality of status’ i.e., equality of position roughly the provision of equal opportunities.

It is an Article from which emerges a right which belongs to ‘any person’, i.e., be he a citizen, a national, a local, or even a foreigner: an injured individual is ‘any person’, he may be a citizen or a non-citizen—the hospital where the injured is admitted has to treat him accordingly; the doctors attending the injured need not give any preferential treatment to a foreigner because he is an alien, and the citizen must not be put in the waiting because he is a citizen—a local who can afford to wait. All persons, in the eyes of Article 14, are equal before law (none to be discriminated) or all deserve equal protection of the laws (laws have to protect people or persons alike): But this does not mean that a person ‘A’ is to have preferential admission in the university because he/she is the son or daughter of a university staff —if he/ she does so, it is a case of violating Article 14 (Parveen Hans v. Registrar, 1990).

Likewise the foreigners who illegally enter another country (as did the Bangladeshi by violating the Foreigners Act, 1946, and Illegal Migrants Act, 1983) and begin staying/enjoying citizen’s benefits like the citizens cannot demand equal status/equal opportunities under Article 14 of the Constitution. Socially and educationally weaker sections of society and in the case of Sarbanand Sonowel v. Union of India—2005 the Supreme Court held: “It is the foremost duty of the classes as listed in (iv) and (v), especially in educational Government to protect its borders and prevent trespass facilities by foreign nation …”.

Prohibition of discrimination on grounds of religion, race, caste, sex, place of birth

The State shall not require special treatment. So do the weaker sections discriminate against any citizen on grounds only of society too require special facilities on reason religion, race, caste, sex, place of birth, or any of them.

(Article 15(1)); “e State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them. (Article 15(1)); No citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction, or condition with regard to—(a) access to shops, public restaurants, hotels, and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads, and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public (Article 15(2)); Nothing in this article shall prevent the State from making any special provision for women and children. (Article 15(3)); Nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (Article 15(4)) (The fourth part was added by the first amendment in 1951); Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Schedule Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. (The fifth part was added by the 93rd amendment in 2005). “The analysis of Article 15 shows that it is one of the aspects of application of Article 14, though it does cover only “citizens” and not “persons”. Its five clauses may briefly be summed up (i) that the state would not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth or any of them; (ii) that both the citizens and the state would refrain from such discrimination with regard to access to public places; (iii) that the state is empowered to make special provisions for the protection of women and children; (iv) that the state can make special provision for the protection of the interests of the backward classes of citizens (the Scheduled Castes and the Scheduled Tribes); (v) that the backward classes may also include

16(1); No citizen shall, on grounds only of religion, for the advancement of any socially and educationally race, caste, sex, descent, place of birth, residence or backward classes of citizens or for the Schedule Castes or any of them, be ineligible for, or discriminated against the Scheduled Tribes in so far as such special provisions in respect of, any employment or founder the State, relate to their admission to educational institutions socially and educationally weaker sections of society and that the state can provide special facilities to backward classes as listed in (iv) and (v), especially in educational facilities. It may be noted that women and children, being disadvantageous on reasons of physical structure, require special treatment. So do the weaker sections of society too require special facilities on reasons of their being socially, economically, educational backwardness for a long time in history. “The argument is not a case of reservation as it is that of affirmative action—though reservation of seats have been provided to the weaker sections of society. Sexual harassment of working women amounts to violation of women’s rights under Article 15 (Vishaka v. State of Rajasthan, 1997). And yet, it may be stated that by merely marrying a scheduled caste/scheduled tribe person, one does not become a scheduled caste/ scheduled tribe himself (Meera Kanwaria v. Sunita—2006), but the children of either father or mother who is of a scheduled caste/a scheduled tribe category can claim the benefits given to such classes (M.S. Valsala v. State of Kerala—2006).

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